This is an interesting case, as Activision has definitely used the military vehicle without permission, and (it's reasonably assumed) profited from it. In 2017 AM General, the manufacturer of the Humvee, sued Activision for the military vehicle's use in the Call of Duty series. The case is ongoing, but Activision is trying to put the kaibosh on it, attempting to have the case thrown out as "...a direct attack on the First Amendment.”
As per the Hollywood Reporter, Activision’s filing goes a little something like this:
"This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare. AM General LLC (“AMG”), a government contractor that manufactured military “HMMWV” (or “Humvee”) vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades.
As such, Humvees are a fixture of the modern U.S. military and are a logical part of any attempt to tell an authentic story about modern war. Humvees also have cultural and historical significance that has absolutely nothing to do with AMG or its manufacturing process. To allow AMG to pursue its claims would run directly contrary to the First Amendment and give AMG a stranglehold on virtually any expressive depiction of 21st Century U.S. military history."
Seems reasonable, right? Well, AM hit em back with the quickness, responding the same day, with this:
Defendants Activision Blizzard, Inc., Activision Publishing, Inc., and Major League Gaming Corp. (collectively, “Activision” or “Defendants”) have made billions of dollars by using AM General’s iconic HUMVEE® military vehicle and its distinctive trade dress (the “HUMVEE® Trade Dress”) in eight Call of Duty video games, numerous ads, two toys, and several strategy guides. Activision neither sought nor obtained permission from AM General to do so. Activision’s conduct constitutes, among other things, trademark and trade dress infringement under the Lanham Act.
This is an interesting case, that will likely have ramifications on many military games going forward. Keep it here, we'll keep you updated on how this turns out.
